Flurry of Proposals to Reform H-1B

As the deadline for the H-1B lottery approaches, both the Trump administration and federal lawmakers are making moves to reform the oversubscribed H-1B visa program.

Highly Coveted

The H-1B visa allows U.S. companies to employ workers in occupations that require special expertise in fields, such as science, technology, engineering and mathematics. U.S. Citizenship and Immigration Services (USCIS) holds a lottery in April each year for the 85,000 H-1B visas that are available. Of those, 20,000 are reserved for candidates with a master’s degree or higher. Last year, USCIS received more than 236,000 H-1B petitions.

Under current law, companies that rely on H-1B workers must recruit a U.S. worker for an open position. They must also promise that the employment of a foreign employee won’t displace an American worker for 90 before or 90 days after filing the H-1B petition. However, a company may be exempt from the recruitment and non-displacement requirements if an H-1B employee has a master’s or higher degree or is paid an annual salary of at least $60,000.

The H-1B visa program has come under fire in recent years for the lottery system and the low salary requirement for the recruitment and non-displacement exemption. Global outsourcing companies have received a majority of the H-1B visas in recent years by flooding the H-1B lottery with petitions.

Potential Executive Changes

A draft executive order by the Trump Administration, a copy of which was obtained and reported by Vox, seeks to protect jobs and wages of American workers by reforming legal immigration to the U.S.

The sweeping order directs the Secretary of Homeland Security to change the H-1B program to “ensure that beneficiaries of the program are the best and the brightest.”

The order specifically calls for eliminating the option for H-4 visa holders—typically the spouses of H-1B visa holders—to get a work permit. This would overturn a regulation put in place by the Obama administration.

Proposed Legislative Changes

Rep. Darrell Issa, a California Republican and a big supporter of President Trump, reintroduced his Protect and Grow American Jobs Act legislation earlier this month. The bill would raise the exempt annual salary to $100,000 from $60,000 and adjust the salary every three years for inflation. It would also eliminate the recruitment and non-displacement requirements exemption for candidates with a master’s degree or higher.

Last week, Rep. Zoe Lofgren, a Democrat who represents Silicon Valley, introduced a bill that would eliminate the H-1B lottery system. Instead, the High-Skilled Integrity and Fairness Act of 2017 would give priority for H-1B visas to companies who pay 200% of the prevailing wage for a given job and raises the exempt annual salary requirement to $130,000.

Republican Senator Chuck Grassley of Iowa, the chair of the Senate Judiciary Committee, and Democratic Senator Dick Durbin of Illinois announced legislation this month that would give priority for H-1B visas to those who have advanced degrees from an American school, preferred skills, and a high-paying job offer.

Raising the minimum annual salary requirement and adjusting it to inflation is good news for both U.S. and foreign workers in Silicon Valley where the cost of living is high. It will be detrimental to employers who rely heavily on the H-1B program.

Contact Us

None of these reform measures will be in place for this year H-1B lottery. U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1. Click here for more information about the H-1B process. Contact us directly with your questions about H-1B or other visa or green card options that may be available to you.

Author: Sophie Alcorn

Sophie Alcorn is a Stanford-educated, New York Times-featured expert on United States Immigration Law. She founded Alcorn Immigration Law, Silicon Valley’s premier immigration and nationality law firm, in 2015. Sophie and her team obtain visas and green cards for highly-motivated individuals to build the most innovative companies in Silicon Valley, having successfully handled hundreds of immigration cases for investors, established and venture-backed corporations, founders, and families.

Sophie hails from Orange County, where she was chosen as Top Attorney by Orange County Metro Magazine in 2012 at the age of 28. In 2015 Sophie joined the ranks of The National Advocates Top 40 under 40, a select group of young attorneys who demonstrate superior qualifications, leadership, influence, and stature.

Sophie is a public speaker on immigration law who conveys the nuances of immigration law in a clear, understandable manner. She lives in Mountain View with her family.

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